17.5.2017   

EN

Official Journal of the European Union

C 154/15

1.1.

The definition of ‘worked specimen’ is given in Article 2 (w) of Regulation (EC) No 338/97:

‘“worked specimens that were acquired more than 50 years previously” shall mean specimens that were significantly altered from their natural raw state for jewellery, adornment, art, utility or musical instruments, more than 50 years before the entry into force of this Regulation (3) and that have been, to the satisfaction of the management authority of the Member State concerned, acquired in such conditions. Such specimens shall be considered as worked only if they are clearly in one of the aforementioned categories and require no further carving, crafting or manufacture to effect their purpose.’.

Specimens qualifying as worked specimens are commonly referred to as ‘antiques’.

This guidance is applicable to all cases where the definition of worked specimens applies under the EU Wildlife Trade Regulations, namely:

1.2.

According to the abovementioned definition of ‘worked specimen’, the management authority of the Member State concerned must be satisfied that the specimen was acquired in such conditions that meet the definition of a worked specimen.

The definition can be broken into the following criteria, all of which need to be assessed:

This guidance addresses these criteria by answering the following questions:

2.1.

The specimen must have been manufactured/worked more than 50 years before the entry into force of Regulation (EC) No 338/97, i.e. prior to 3 March 1947.

2.2.

Specimens that have been reworked prior to 3 March 1947 may be considered as worked specimens for the purpose of the derogation if they meet the other conditions of the worked specimen's definition.

2.3.

A specimen which was worked or reworked after 1947 would not meet the definition even if the specimen could be dated to before 3 March 1947. For example, an ivory billiard ball that has been reworked into a walking stick handle would not meet the derogation if it was reworked in the 1960s even if the ivory could be dated to pre-1947. Another example would be timber that may be dated to pre-1947, but the specimen was worked after 3 March 1947.

2.4.

The person who acquired the specimen(s) before 3 March 1947 does not have to be the current owner.

3.1.

The purpose of the alteration of the specimen must clearly be for jewellery, adornment, art, utility, or musical instruments. In addition, the specimen should not require any further carving, crafting or manufacture for it to effect its purpose.

3.2.

These conditions can only be assessed on a case by case basis (see also Section 4).

3.3.

In order to qualify as a worked specimen, a part of an animal (such as teeth, tusks, horns, antlers, skin, bones or shells) have to be significantly altered from its natural raw state, such as by carving, engraving, or manufacture into another form.

3.4.

Polishing or fixing a specimen to another material, such as mounting, does not qualify the item as worked specimen.

3.5.

Any alteration to a specimen should be irreversible. There must also be clearly no interest or intent to use the specimen for other purposes.

3.6.

For elephant ivory, this means that raw tusks, or pieces of tusks (which may be polished, but not carved or engraved), whether or not attached to the skull, do not qualify as worked specimens (5). For a tusk or part of a tusk to qualify as worked, the specimen must have been subject to significant carving or engraving over at least 90 % of its surface. Light carving, engraving, or surface markings where the form of the tusk remains substantially the same as its natural raw state would not be deemed worked.

3.7.

For a rhino horn or part of it, light carving, engraving, or surface markings where the form of the horn remains substantially the same as its natural raw state would not be deemed worked.

3.8.

Rhino horn specimens such as whole or part horns with clocks, inkwells, barometers or other objects inserted in them, where the horn remains substantially unaltered and/or where insufficient artistic merit can be independently demonstrated in accordance with the paragraph 5.6 of this guidance, do not qualify as worked specimens. The EU Guidance document on the Export, re-export and intra-Union trade of rhinoceros horns (6) should also be taken into account.

3.9.

Skulls, skeletons (whether wholly or partially articulated) or individual bones which have been cleaned, primed, polished, mounted or otherwise prepared would not be deemed worked specimens. Skulls and horns that have been mounted (including when horns are attached to a skull), on a wooden plaque or base for example, would not qualify as worked specimens.

3.10.

In general, stuffed (taxidermied) animals — for example mounted and stuffed birds — would meet the condition of being ‘significantly altered from their natural raw state’ within the worked specimens' definition (see European Court of Justice, case C-154-2).

3.11.

Appendix I of this guidance provides illustrative examples of specimens which, although acquired in their finished state before 3 March 1947, would not qualify as worked specimens, because they have not been sufficiently altered.

3.12.

Appendix II of this guidance provides illustrative examples of specimens acquired in their finished state before 3 March 1947, often commercially traded, which would classify as worked specimens, because they have been sufficiently altered.

4.1.

In general, ‘worked specimens’ cannot be reworked and must remain in their original ‘worked’ state after 3 March 1947, regardless of the age of the material concerned (7).

4.2.

However, it is unrealistic to expect items to survive several centuries in the original condition and thus legitimate commercial activities involved in renovating antique items are allowed. Renovation cannot change the effect of the specimen as originally intended.

4.3.

Reworking using CITES listed material acquired from after 3 March 1947 would mean the item would no longer qualify as a worked specimen. For example, specimens of Dalbergia nigra (Brazilian rosewood) such as floorboards or panelling reworked to form the bodywork for new guitars would not qualify as renovation. Also excluded from the scope of the definition would be the use of two damaged items to make one perfect one. For example, taking two damaged tea caddies, completely dismantling both of them and then making one new tea caddy from the undamaged elements of both would not meet the definition.

4.4.

However, repair not involving CITES-listed materials would qualify for the definition of a worked specimen. For example, replacing the brass hinges on an antique tea caddy made from CITES-listed tortoiseshell would meet the conditions of the definition, if it meets also other requirements.

4.5.

Many items are renovated by taking material from other irretrievably damaged examples in order to renovate or repair the one good example. When CITES-listed material is used for renovation, this material must date from before the species was listed on the CITES Convention for the renovated item to still qualify as a worked specimen. For example, where ivory inlaid furniture needs additional ivory inserted to repair damage to the original inlay, provided that the ivory used for such a repair dates from before the species was listed on the CITES Convention (i.e. ‘pre-Convention’) it may be classified as renovation and the item may still qualify as a worked specimen, if it also meets other requirements. Equally, pre-Convention tortoiseshell taken from one tea caddy to renovate another may be classified as renovation and not reworking.

5.1.

The responsibility for demonstrating that a particular specimen meets the definition of a worked specimen rests with the item's owner or vendor.

5.2.

On receipt of an application, Management Authorities will consider the EU Wildlife Trade Regulations, this guidance, any other relevant species-specific guidance documents and past precedents to determine if the item satisfies the conditions to qualify as a worked specimen.

5.3.

Except for cases referred to in paragraph 5.6, it would be acceptable to the Management Authority for a worked specimen's age and for the assessment whether the specimens qualifies as jewellery, adornment or art, to be verified by a person with expertise in the relevant field. This could be an antiques specialist, museum curator etc., who is recognised by a relevant trade association, representative body or similar organisation. This may be the person involved in the associated commercial use of the specimen concerned if the person has the relevant expertise.

5.4.

Some Member States may rely on specified individuals to make appraisals of a specimen's age and whether the specimen qualifies as jewellery, adornment or art, so applicants should check with their Management Authority.

5.5.

Evidence of provenance supplied by owners in the form of original dated receipts or bills of sale, or dated newspaper articles containing photographs or detailed descriptions of the specimen may also be acceptable as proof of age of the specimen to the CITES Management Authority.

5.6.

However, if the Management Authority has doubts about the age of the specimen or about whether the specimen qualifies as jewellery, adornment or art, especially where high risk species such as elephants, rhinos and tigers are concerned, and/or where deliberate non-compliance is suspected, the Management Authority may decide that independent verification should be provided by an expert not involved in the commercial exploitation of the specimen in question. It should not, for example, be undertaken by the buyer or seller or another intermediary, such as an auction house, involved in the sale of the specimen.

5.7.

Such independent verification of the age of the specimen may also include verification by any available scientific means (such as radio-carbon dating for instance). However, when requesting such additional independent verification, it should be taken into account that even using methods such as these, accurate dating can sometimes be difficult to achieve and that large samples from the specimen may be required, causing possible damage to the specimen and potentially affecting its artistic and monetary value.

5.8.

Stuffed animals, especially birds of prey, are difficult to age and it can be difficult to prove that the specimen was in its finished state before 3 March 1947. Where renovation of stuffed animals has taken place, this can further compromise the verification process. To qualify for a worked specimen in case of a renovated stuffed animal, sufficient evidence of the specimen's original worked acquisition status needs to be provided to the Management Authority.

5.9.

Management Authorities may require or introduce additional measures to be used in an assessment, so it is important for the applicant to check at the time of presenting application that all necessary information has been provided.